A Bush Nominee Ted Kennedy Likes
Eastland, Terry
A Bush Nominee Ted Kennedy Likes Why Michael McConnell may make it to the federal bench. BY TERRY EASTLAND LAST WEEK, the Senate Judiciary Committee took up the nomination of Michael McConnell...
...Committee Democrats have tended to hold hearings relatively quickly for circuit nominees they regard as more "moderate" and to confirm them, but to delay hearings for those they deem more "conservative...
...At the hearing, the Democrats queried McConnell on religious liberty, federalism, the new campaign finance law, and the duties of a judge...
...To judge by the hearing, the answer appears to be yes...
...But mostly they asked about abortion...
...Senator John Edwards, for example, did not seem to know that McConnell's criticisms of Griswold and Roe are well within the legal mainstream...
...It finally dawned on Cantwell: "You mean," she said haltingly, "the right of the fetus...
...Kennedy cited two occasions...
...Delay was the experience of a group announced in May 2001, including Fifth Circuit nominees Charles Pickering and Priscilla Owen, both of whom were eventually given hearings, then rejected 10-to-9 by the committee on party-line votes...
...Orrin Hatch, his chief sponsor, successfully pleaded his case...
...Indeed, the likelihood is that more than a few Democrats will vote for him...
...Or maybe it's because so many liberal law professors—including Chicago's Cass Sunstein, who has advised the Democrats on judges— have vouched for him...
...BY TERRY EASTLAND LAST WEEK, the Senate Judiciary Committee took up the nomination of Michael McConnell to a seat on the Tenth U.S...
...The Democrats had their disagreements with the nominee, but seldom expressed them with the kind of edge that signals serious confirmation trouble...
...That, not incidentally, was the problem with Roe v. Wade, and McConnell has obviously absorbed its negative teaching...
...And then there are McConnell's views on abortion...
...As laughter filled the hearing room, committee chairman Patrick Leahy pointed to the place where the Republican members sit and reminded McConnell, "You have to get votes over there, too...
...Or maybe he'll go through because Sen...
...Throughout his career he has been critical of the Supreme Court's abortion jurisprudence...
...He differs with Justice Antonin Scalia on certain religious liberty questions and on the recent school prayer cases...
...Moreover, he has opposed abortion on moral grounds and supports a constitutional amendment that would extend the right to life to the unborn...
...He is also a skilled appellate lawyer with impressive Supreme Court wins...
...Until the hearing, that seemed possible...
...While he didn't back away from his policy views on abortion—"I do believe the state should extend protection to the fetus," he said—he emphasized that "whatever constitutional amendment I might favor has nothing to do with how I would enforce the law...
...A graduate of the Chicago Law School and now a professor at the University of Utah College of Law, he is one of the nation's most accomplished legal scholars (and has been published in these pages...
...But throughout he emphasized that the abortion liberty is "well-settled" in constitutional law, and that as a lower court judge he would be obligated to enforce the High Court's decisions...
...Maybe some behind-the-scenes deal was struck...
...As the pleasantries of Kennedy and Leahy suggest, the Democrats were friendly, and McConnell was at ease with them...
...Something could happen to derail McConnell's nomination...
...So it seems that McConnell will go through...
...Circuit Court of Appeals...
...At times the hearing seemed like a tutorial on abortion law, with McConnell as teacher...
...Griswold v. Connecticut, the 1965 case announcing the unenu-merated right of privacy that the Roe Court would later maintain included the abortion right...
...Edward Kennedy, who had missed much of the session and was only now engaging the nominee, thanked McConnell for counsel he had provided the committee in the past in drafting legislation...
...He's "conservative but not an ideologue," they say, citing his "unpredictable views...
...To the extent the High Court has become less hostile and more accommodating to religion in public life, you can credit McConnell as much as anyone...
...and Planned Parenthood v. Casey, the 1992 case holding that the abortion right is protected by the Fourteenth Amendment...
...McConnell then reminded Kennedy of a third time he had lent the committee his legal services...
...After waiting 16 months for his hearing, would he become the third Bush circuit nominee to go down to defeat...
...When the committee does vote— possibly in November, after the elec-tion—McConnell can count on all nine of the votes "over there...
...As he told the committee, "I have the ambition not to have an agenda but to be a model rule-of-law judge...
...But if McConnell is confirmed, he could turn out to be the right kind of judge—one who doesn't substitute his own views for the law...
...Nor did it appear to have occurred to Edwards or Sen...
...On issues of legal interpretation and the role of the courts, McConnell holds conservative views...
...But will he also get the support of at least one Democrat, needed to send his nomination to the Senate floor...
...You can bet the liberal groups opposing him haven't laid down their arms...
...The Democratic questioners came out the worse in these exchanges...
...It's fair to ask why McConnell's prospects seem so good...
...McConnell was another in that group...
...The liberal interest groups came out strongly against McConnell, and it was easy to see why...
...Addressing the various opinions in those decisions, McConnell observed that Justice John Marshall Harlan's account of privacy in Griswold was "the most successful" in that case, that the opinions for the Roe majority were "analytically weak," and that Casey at least did a better job than earlier decisions of linking the abortion right "to traditional legal materials...
...They asked about his views on Roe v. Wade, the 1973 case declaring the abortion right...
...Terry Eastland is publisher of THE WEEKLY STANDARD...
...McConnell opposed the Clinton impeachment and was critical of some aspects of Bush v. Gore...
...Maria Cantwell that there might be anything problematic about extending the Griswold privacy right to include the abortion liberty, as the Court did in Roe...
...Or maybe it's simply because the Democrats, having worked with McConnell in the past, respect and like him...
...Why, is less clear...
...Acknowledging the point, an amused Kennedy commented, "We don't want to go over the top on this...
...McConnell patiently explained that in Griswold the privacy right involved only the person asserting the right, whereas in Roe the privacy right just might have involved "something on the other side...
...Indeed, enforcing the law and only the law was the theme McConnell pressed throughout the hearing, seldom provoking a Democratic demurral...
...Toward the end of the hearing, Sen...
Vol. 8 • September 2002 • No. 3
